Militia Documentary Off Target?

There has been a little flurry in the news about an upcoming documentary in the works featuring Schaeffer Cox, and the Alaska Peacemakers Militia. The film about “Plan 241” is spearheaded by filmmaker Joshua Ligouri, but any reporting on it so far has been brief and peripheral. Let’s take a closer look.

Here is the “sizzle reel” for the proposed film.

Schaeffer Cox

To some, Schaeffer Cox is a domestic terrorist, who conspired with members of his Alaska Peacemakers Militia to murder employees of the federal government including a judge, and amassed an arsenal of illegal weapons he’d use to foment bloody revolution in the streets of Fairbanks. He is a violent, mentally unstable criminal who is better in the hole than on the streets.

To others, he is a visionary, a brave and outspoken idealist, father and family man, son of a preacher, persecuted and prosecuted by a government gone out of control, which no longer represents the will of the people, and is willing to destroy lives in order to keep dissent at bay. He is the voice of resistance, and the patriotism of our founders, who stood against tyranny at the risk of losing everything, including their lives.

After a trial spanning six weeks in the summer of 2012 in Anchorage, the 28-year old Cox was found guilty and sent to prison for 26 years on a host of weapons charges, and conspiracy to commit murder of federal employees. A Sergeant in Cox’s militia, Lonnie Vernon, received an identical sentence. A third militia member, Major Coleman Barney, an electrical contractor from Fairbanks was the only one of the three charged, not to be convicted on the conspiracy charge and was sentenced to five years in prison, including time served which was almost two years at that point.

Plan 241 – The Documentary

The “241 plan” the film references was so named because Cox and his associates had planned to retaliate against the government by killing two feds for every one of the militia that was killed, burning two houses for every house taken, kidnapping two people for every one of them arrested. Two for one = 2-4-1. No violence was committed, but evidence was gathered and the FBI, troopers, and Fairbanks police arrested the three, plus Vernon’s wife Karen during a staged illegal weapons sale facilitated by another militia member, JR Olson, who was actually a criminal informant for the FBI who had infiltrated the group.

Controversy blazed as the media, the blogosphere, the public, and ultimately the 12-member jury wrestled with issues of the grey areas of the first amendment. Conspiracy charges are notoriously squishy, difficult to prove, and subjective. When does “just talk” become more than “just talk?” When is a plan really a plan? And how do we judge how our government is handling cases like this? If they fail to respond to a perceived threat, it’s easy to say that someone wasn’t doing their job, the government is incompetent, innocent people were hurt unnecessarily, how could this have happened? If the government acts before an act of violence has taken place, are they being alarmists? Are they using their considerable force to silence citizens speech? Are they creating criminals and prosecuting thought crime on their way to becoming a police state?

These are all legitimate questions, that we as citizens have a right and a duty to ask. But the answers don’t come easily. Nothing is black and white.

During the investigation of the militia, the government also employed a non-criminal informant named Bill Fulton, an Army veteran who ran a military surplus store called The Drop Zone in Anchorage. Fulton’s reputation was notorious in the community, and while never a militia member himself, some of Fulton’s best customers were members of Alaska’s many militia groups, making him the perfect point of contact to pass along information the FBI was seeking. Fulton worked undercover for years, unbeknownst to his friends, business associates and even his family. It’s the stuff mini-series are made of.

Sovereign Citizens

Another group who call themselves “Sovereign Citizens,”  including Cox and his associates, were customers at The Drop Zone. The Sovereignty movement is mentioned in the clip.

Sovereigns believe that the United States has strayed so far from its original intent, it has become a corporate entity that treats citizens literally as a monetary commodity. They eschew all forms of government licenses – marriage, drivers’, birth, fishing and hunting – believing that to apply for and possess such documents enters you in to an implied consensual relationship with the tyrannical corporate entity. They believe that by renouncing their citizenship, using documents of their own making, using their own money and barter system, not using last names, and conducting legal affairs in a Common Law Court, that they are able to effectively “opt out” of the government and its laws. They choose to live inside the country, but outside the scope and limitations of its laws.

Sovereign Citizens are not necessarily members of militias, nor are militia members necessary sovereigns, nor are either of those groups necessarily associated with the Tea Party, but there is substantial overlap of all three groups.

Fulton had the trust of the collective militia community and while in Fairbanks met with Cox, and his #2 man Les Zerbe. He was there for a conservative fundraiser at the store of his friend Aaron Bennett, commander of his own militia, who is heavily featured in the clip wearing a black shirt revealing large tribal tattoos on his arms.

The Knife

A confrontation ensued which appears to be one of the center points of the new documentary. This incident was covered heavily at the trial, which I attended in June of 2012, and was a focus of the defense. So, I was fascinated to see it re-emerge, and to see how it will be portrayed in the film.

During the course of a gathering of militia leaders, including Cox, Zerbe, Bennett, and Fulton, there was an altercation. According to the prosecution, and ultimately the story which the jury believed was that Cox had divulged information to Fulton the night before, about intending to arrest and kill judges and law enforcement officers, which Fulton believed  might be imminent. At the meeting, Fulton attempted to delegitimize Cox’s authority, and erode his support with other militia members. During a verbal back and forth, Les Zerbe called Fulton’s loyalty into question making the undercover operative fear that his cover and reputation might be blown. In a show of Alpha male posturing, Fulton lunged at Zerbe who was on the other side of the cash register counter and said, according to Fulton himself, “If you ever question my integrity again, I will slit your fucking throat, and bleed you out at my feet, you son of a bitch.”

Well.

Bill Fulton, undercover FBI informant

The point of dispute, which is raised in the video, is whether Fulton wielded a knife when he said this. The following is from my coverage of the trial when Zerbe took the stand.

Nelson Traverso (Attorney for Schaeffer Cox): You just said he assaulted you?

Les Zerbe: By really raising his voice at me. And he was drinking about 10 beers, but I thought he was sane, and making believe he ws drinking it or something, and let me believe it was a setup. He approached me and came toward me with a weapon.

Traverso: What weapon?

Zerbe: I was looking in the man’s eyes to see how serious he was on harming me. I did not see the weapon although I was told it was a knife.

My eerily lifelike courtroom sketch of Les Zerbe evading questions from federal prosecutor Steve Skrocki in June of 2012.

Then, under cross-examination by federal prosecutor Steven Skrocki, Zerbe had this to say:

Skrocki: …you don’t know if Bill Fulton had a knife or not?

Zerbe: I looked in his eyes, like a pit bull. If a pit bull’s coming at you, you look in his eyes.

Skrocki: You didn’t get hurt.

Zerbe: It felt like I was.

Skrocki: You had a gun.

Zerbe: Yes.

Skrocki: A .45 in your coat pocket. You think he’s coming at you.

Zerbe: Yes.

Skrocki: Under oath you said you never saw a knife.

Zerbe: I didn’t see it clearly, but it was some kind of weapon. I just saw he had a weapon in one hand.

Skrocki: Now it’s in one hand? How do you know?

Zerbe: You usually carry your hand differently if you’re holding a weapon.

Skrocki: And you didn’t tell a trooper.

Zerbe: Nope.

Bill Fulton later testified that he did have a knife in his right hand, but stated that he held it in his pocket, and that he had controlled the situation as much possible to “make it look real.” He went on to state that he made sure to place Aaron Bennett between himself and Zerbe because, “I didn’t want to cut his throat.” Bennett did indeed hold Fulton back at the front of the counter, and Zerbe fled the store out a back door from behind the counter.

Given the testimonies of Zerbe and Fulton, I was surprised to see how the incident was portrayed in the 2-4-1 documentary’s “sizzle reel.” At 1:14, Aaron Bennett says of Fulton, “Bill pulled out a knife, grabs him, and puts it up to his throat and says, ‘If you say one more word, I’ll kill you. I’ll cut your throat.'”

Whichever side of the larger issue you’re on, it’s pretty clear that if Fulton had “grabbed [Zerbe] and put a knife up to his throat,” the person whose throat the knife was up against would have known it was actually a knife. Bennett is a really great presence on film, and the “knife meets throat” version makes for a dramatic story, but based on what the person on the receiving end of the incident said under oath, it isn’t what happened. There’s no such thing as perjury in the movies, but this leads me to believe that the documentary may be entertaining, but neither the participants, nor (more importantly) the documentarians are particularly concerned with accuracy, which is a shame.

Coleman Barney

The second thing which struck me about the piece is the interview with the wife, and parents of Coleman Barney. Rachel Barney was pregnant with the couple’s fifth child when her house was raided by the FBI. Cox, who at the time was a fugitive from the law, had been staying at the Barney’s residence. She was home with the other children when agents stormed the house. It was understandably not a good day for the Barney family, and the lingering distress is evident. At trial, Barney was arguably the most sympathetic of the four convicted, and the judge received many letters from church friends, and business leaders in Fairbanks extolling his work ethic, family values, and good citizenry. In keeping with this assessment, Coleman Barney was the only one of the three charged with conspiracy to commit murder not to be found guilty. The jury deadlocked, and the government chose not to further press charges, probably feeling that Barney was the least dangerous of the three, and not a significant risk to society.

Barney’s attorney, Timothy Dooley, was the most effective of the defense attorneys, and strongly and consistently built his case on distancing Barney from Cox and Vernon. The farther his client was from the others in terms of physical proximity, ideology, communication, the better off he would be. When witnesses were called to the stand who didn’t even know Coleman Barney, Dooley would ask the same questions just to get the string of “no’s,” “Have you ever met Mr. Barney?” “Have you ever been in the same room with Mr. Barney?” “Have you ever even seen Mr. Barney?” Dooley from the beginning wanted the jury to think of Coleman Barney as the odd man out – not really part of what was going on with Cox and Vernon.

It’s possible the Barney family didn’t know how the sizzle reel would look, or how intimately their husband and son would be tied up with the man from whom his attorney tried so hard, and successfully to distance him.

There is No Smoking Gun

Another angle of the film appears to be the assertion that there was a murder conviction, but no victim. A quick clip from Mae Barney (Coleman’s mother) appears to imply this, and the final few seconds of the reel have a subtitle which reads, “There Was No Smoking Gun.” There was, in fact, nobody accused of murder. The most egregious charge was conspiracy to commit murder. So, the lack of a “smoking gun” or a murder victim is completely irrelevant to the charge. The issue is the existence of, or lack of existence of a plan, and conspirators.

It could certainly be argued by advocates for Cox, Barney and Vernon that a charge of conspiracy was not warranted in the first place. But to compare conspiracy apples to murdered oranges misses the mark, confuses the casual viewer, and won’t add anything to getting at the truth.

The Government

The gist of the documentary is clear. The government makes stuff up. The government invents criminals. The government decides who will be guilty and makes them guilty. The government is bad.  Cox and Barney are completely innocent.

The truth, however, is not that simple, nor one-sided. The inclusion of at least one blatant falsehood takes the wind out of the sails of the accusation that government makes stuff up to suit their purposes. And while the loyalty of the Barney family is understandable, Barney actually got off a lot easier than Cox or Vernon, and was not convicted of murder as the clip leads one to believe. He was convicted only on weapons charges. Had he been convicted of conspiracy, he’d have gotten what Cox and Vernon did, 26 years instead of five.

The sentences also lead one to speculate what might have happened if Cox, Vernon, and Barney had taken the plea deals offered to them by federal prosecutors. It seems likely that Cox and Vernon may have fared better than they actually did. And perhaps Barney would have too. Surely whatever deal it was would still have amounted to a felony, and prohibited all three from owning firearms as a result. All three were held at the same facility in Fairbanks when the deals were made, and all three were apparently convinced they could beat the rap, and all declined to take the deal.

As a consequence the cases went to a jury trial, where 12 men and women plus alternates sat and listened to the trial for six weeks. There were hundreds of exhibits, and more than 70 witnesses called to the stand from both sides. The government did provide evidence, and they did prosecute, but they didn’t have control over what the jury decided. Barney, as I’ve stated, had a deadlocked jury on the conspiracy to commit murder charge. There were also charges of which the defendants were found not guilty. Cox himself testified for more than a full day. Barney testified on his own behalf as well, and it may have helped his case.

Off Target?

We will learn this coming Wednesday whether the documentary project will receive funding from The Blaze. If it does, we can expect an entertaining glimpse into the world of those who figured heavily into the trial. I know from experience that they are a fascinating bunch. But it’s unfortunate that the film has already strayed from what it might have been – an accurate portrayal of events as described by witnesses that matches up with testimony under oath, and a thoughtful discussion of the first, and second amendments, government accountability and responsibility, and where we agree to draw that line between keeping the public safe, and infringing on personal liberties. The story is interesting enough on a personal level, and a philosophical level, without having to obscure, or twist events. It doesn’t need spin. I fear the film will be entertaining, but an opportunity missed.

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